There is great joy in having your child reach their eighteenth birthday and become a legal adult. It is often a celebratory time, meaning that your child is heading off on a great adventure to begin college, a career or at least is moving out of the house.
However, this milestone also means that you no longer have any legal authority to make medical and financial decisions on your child’s behalf. In the eyes of the law, a child is officially considered a legal adult at age 18. Parents often overlook this critical detail until some incident arises — for instance, when a bank, credit card company or doctor tells them that they don’t have permission to view any confidential information about their child. This could be particularly heartbreaking if your child is confronted with a health issue, and doctors are not able to communicate his or her condition to you.
What Can You Do?
You can make arrangements for the management of your child’s finances and healthcare decisions relatively easily by executing a power of attorney. A power of attorney is a document in which your child, known in legal terms as the principal, appoints you or someone else, known as an agent (or an attorney‑in‑fact), to act on his or her behalf.
What happens if your child becomes incapacitated and has not appointed an agent? Generally, state law requires a family member or other interested person to file a petition for guardianship with the circuit court in the county where the child resides. Once the petition has been filed, the court will need to review a competency report prepared by your child’s physician, which includes a full analysis of their health condition. As part of the proceedings, your child’s case may need to be reviewed by the county’s social services department (particularly if your child needs care outside of the home) and a court-appointed guardian ad litem (GAL), or an attorney in the county. After a hearing, where all evidence regarding the case is presented and evaluated, the court will appoint a guardian to make financial and healthcare decisions for your child.
Compared to an agent acting under a financial power of attorney, court-appointed guardians for financial matters typically have more restrictions. For example, a guardian generally cannot sell real estate or make gifts on a child’s behalf without court approval. Additionally, a court-appointed guardian must file a financial report with the court every year regarding a child’s income and expenses (which may be a public record in some states). State law may also limit the guardian’s ability to withhold or withdraw life support if there is no clear evidence of the child’s desires related to end-of-life decisions.
What Documents Do You Need?
In most states, there are two distinct types of power-of-attorney documents: a durable financial power of attorney and a healthcare power of attorney. Both documents are required for your child to be fully protected from court guardianship.
Here’s a quick breakdown of the differences between the two:
Durable financial power of attorney: This document grants an agent the authority to act on your child’s behalf for financial matters. The agent will have the legal authority to pay bills, sign checks and make investment decisions for your child if he or she becomes incapacitated.
Healthcare power of attorney: This document grants an agent the authority to make health and medical decisions on your child’s behalf if he or she becomes incapacitated (in some states, this is known as an advanced healthcare directive).
A healthcare power of attorney typically authorizes the agent to have access to your child’s medical records and make any necessary medical decisions on their behalf, including the withholding or withdrawal of feeding tubes and other life support.
It may also grant the agent authority to admit your child to a nursing home or community-based residential facility if they require care outside of the home; he or she can also state your child’s wishes regarding organ donation.
Need to complete a power of attorney? Most states have standard forms that are relatively simple for you to complete on your own. Of course, you should always consult your attorney with any legal questions you may have about these documents.
You can find the forms on the internet, or ask your attorney for assistance.
Beyond powers of attorney, some individuals also execute a declaration to physicians (also known as a living will), which directs the withholding or withdrawal of feeding tubes. Keep in mind that this document is not the same as a healthcare power of attorney — authority under a declaration to physicians directive is only limited to the withholding or withdrawal of feeding tubes and other life support. If your child has this document in place, but does not have a healthcare power of attorney, no agent has authority to make day-to-day medical decisions on their behalf, and court guardianship may still be required.
Making these arrangements might be the difference between continuing to help your child when a medical or financial issue arises, or being locked out of any communication about these issues. By taking these steps, you’ll have peace of mind in knowing that your child is well prepared for both the expected and the unexpected, as they make the transition into adulthood.